READY, SET …WAIT!Author(s): IRVING YOUNGERSource: ABA Journal, Vol. 74, No. 1 (JANUARY 1, 1988), p. 122Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20759712 .

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Persuasive Writing

READY, SET ... WAIT! BY IRVING YOUNGER

Among the most common causes of bad prose is premature penman ship, the hasty setting down by an

impulsive author of unripened thoughts. Just as you'd never offer guests a half-cooked meal, so you shouldn't throw at your reader a raw and unseasoned text.

Rewriting doesn't always cure the defects of a rushed draft. Whether scrawled on a legal pad or displayed on a monitor, words that are visible take on a permanence that is danger ous. Resisting revision, balking at erasure, first words have a subver

sive tendency to persist into the final version. Let those first words be less than your best words and your final version will suffer. The remedy is hard work, the hard work that pre cedes all persuasive writing.

Of the various kinds of persua sive writing a lawyer must produce, perhaps the most elaborate is the ap pellate brief. The temptation will be powerful to start composition forth with. That way lies premature pen manship. To guard against it the lawyer writing it had better set pen to paper or fingers to keyboard only after an arduous and thoroughgoing process of preparation.

Suppose that lawyer is you. Here is a five-step summary of what to do.

Read and reread the record un til you know it as completely as a Sherman or a Patton knows the ter rain over which he fights. No one can do it for you. It's you?the author of the brief?who must work through the volumes of transcript, study each of the exhibits, and wrestle with the case until it has no more secrets to yield.

A useful aid to this enterprise is the putting together of an index to the record and a chronology of rele vant events. The preparation of in dex and chronology requires you to immerse yourself in the details of the

matter, which is the only way to mas ter them. Once done, the index and the chronology are handy to have: they help you find in the amplitude

of the case whatever specific refer ence or particular fact you need to find.

At this point, you probably have an idea of the areas of law the appeal will touch. If you lack a gen eral sense of the nature of any such area, acquire it. Don't do intensive re search. That comes later, and in any event a cursory approach will prove more useful now. Find a good CLE manual in point, a law-review article or a few chapters in an introductory hornbook. Read them. That will be enough for present purposes.

Think. Don't write. Don't read.

Sit back and concentrate on the case. You know its facts thoroughly (see step 1) and are familiar enough with the applicable law (see step 2) to be gin to winnow out of the welter of materials with which you've been grappling the issues that an appellate court might find appealing.

Remember always that it's to the appellate court you will make your arguments. Not to the client, the op ponent, the public or posterity. Imag ine that you are a judge on the

appellate court. Ask yourself what you, as a judge, would find interest ing in the case. It may take a while to come up with an answer to your query. That's why you should allow plenty of undistracted time for think ing about it.

When you start to perceive what you, as a judge, would find interest ing in the case, you've begun to per ceive what the appellate court will find interesting in it.

Now review the facts to be sure

they bear out the issues you've found interesting. Make certain that there are no gaps in the proof and that the record unequivocally presents those interesting issues for resolution.

Start to determine the phrasing of the issues to be briefed and argued. Mull them over. Are they truly likely to engage the court's interest? Can you plausibly present them so as to

help your client's case? Have you identified every issue worth raising?

If the answers to these questions are yes, you're ready at last to begin writing. For suggestions on how to go about it, see next month's column.

Irving Younger is the Marvin J. SonoskyProfessor of Law at the Uni versity of Minnesota (Twin Cities).

122 ABA JOURNAL / JANUARY 1, 1988

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